Constitutional Law

CONSTITUTIONAL LAW OUTLINE

JUDICIAL REVIEW & CONSTITUTIONAL STRUCTURE

Judicial Review

Constitutional Basis: Art III Sec. II Cl. II:

“In all cases affecting Ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regs. as the congress shall make.

Premise:

the power of the courts to declare acts of government and governmental actors unconstitutional

void/invalid according to Court’s interpretation of Constitution

Marbury v. Madison

Issue: can the Court issue writ demanding an exec. official do something or does that violate separation of powers?

Analysis:

when Court already has original jurisdiction over a case properly before it then it can issue a writ of mandamus

Marshall: “it is emphatically the province and duty of the judicial department to say what the law is”

Constitutional Basis:

Art. III Sec. 2: Courts hear cases arising under Const., then they can look at Const. to find rights and protect them

Issue: can Congress impose requirements on state gov’ts when it passes laws of general applicability (when they apply to the private sector and public state sector alike)?

Holding: Statute upheld

Overrule National League of Cities

“integral operations” test wasn’t mandated by 10th amendment

Instead place focus on structure of federal gov’t

States not protected by 10th amendment, they’re protected by democratic process

Can vote out unfavorable legislatures

Rule: gov’t can regulate states when they are acting like a private party

Impact:

Still good law but used narrowly

Used as a defense for Congress when it wants to pass law of general applicability that happens to regulate states as employers

New York v. United States

Statute: Complicated law directing states how to handle their environmental waste by creating 3 levels of incentives to compel states to provide their own facilities for disposing radioactive material or to contract w/ another state to dispose of it; if they don’t do these things the gov’t will make them be responsible by making them take title

Holding: law is unconstitutional

Congress cannot force states to take title of the waste

Too coercive

Too punative

Forcing states to reg. in the way Congress mandates

It’s “commandeering”

Taking over the state’s ability to govern itself

Essentially drafting states to do fed’s job

Printz v. United States

Statute: Brady Bill, mandates that state law enforcement chiefs (CLEOs) must conduct background checks before allowing someone to purchase a gun

Holding: Statute unconstitutional

This is commandeering

Essentially drafts state officers to carry out a federal mandate

unfunded mandate

Relies on history

Early Congress’s didn’t use this power which suggests it didn’t exist

Federalist papers

Diminishes executive power

By delegating too much power to the state

Dissent:

Statute is valid under Necessary and Proper clause

Do N&P analysis:

This is commerce b/c guns can be bought/sold interstate

Asking CLEOs to do these checks is necessary for regulating interstate gun transactions

Hypo: Congress passes law forbidding state gov’ts from giving legal effect to same sex marriages

Commerce clause analysis:

Is it within the commerce clause?

Arguments—if you’re married your taxes are lower and this affects commerce

If yes, does it infringe on state sovereignty?

Arguments for unconstitutional:

It’s commandeering

Not giving states a choice but to comply

States are independent and autonomous within their spheres of authority

Rely on Printz and New York

It’s telling states how to regulate

Arguments for constitutional:

It’s not commandeering

Just a suggestion on how to reg.

It’s not coercion

It’s only temporary/limited/solely ministerial

The requirement is so small it doesn’t rise to level of coercion/commandeering

Hypo: Federal regulation of poker player b/c it’s immoral and a waste of time, DHHS authors pamphlet and distributes it to governors who will be responsible for distributing the pamphlets in some way

Commandeering?

Yes

States have discretion in how to distribute but not whether to distribute

States are therefore carrying out fed gov’ts policy

No

States have option of how to distribute

Not intrusive/costly like it was in Printz/New York

This is ministerial, minor, easy task just handing it out

State Autonomy Limits to the Spending Power

Congress has spending power

Limits

Use it to pursue general welfare

Strong deference to Congress when statute based in this rationale

Conditions based on spending power must be unambiguous

So states can make knowing choices and are aware of consequences

Related to federal interest in certain national projects/programs

Other constitutional provisions

Look to see if there’s something coercive about the way the spending is set up

State ID card initiative: states must issue the ID cards to residents, with option to alter drivers’ licenses to comport

Government:

it’s not commandeering:

distinguish Printz and New York

it’s ministerial work because you can just alter already-existing cards

Anti-

it’s commandeering

states have to carry out this policy

sometimes it will require a lot to change all the info and get all the required info on

National ID Card Act: under ICC Congress requires people residing in US to obtain ID card from fed. gov’t b/c the fear of terrorism has caused adverse effects on national econ. and these cards will fight terrorism

Government:

Wickard, Raich aggregation principle

in the aggregate it would substantially affect interstate commerce if people didn’t have these cards b/c people will feel safer to participate in national econ.

not a purely local issue b/c people staying home is adversely affecting national econ.

Anti-

Lopez

gov’t piling inference on inference to achieve its policy

Morrison

fear of travel creating an economic effect is too attenuated

no substantial econ. effect

no rational basis connecting ID cards w/ fear of terrorism

4. Highway Antiterrorism Funding Act: to make sure highways can withstand a terrorist attack, Congress will appropriate funds for repairs and improvements, and states who don’t issue ID cards will loose 20% of funds

Government

Spending Clause analysis:

providing evacuation routes is general welfare

conditions are clear and unambiguous

issue is related to federal interest

no other const. bar

20% isn’t coercive

Anti-

20% is a coercive measure

the connection b/t the ID cards and anti-terrorism on highway seems more attenuated than Dole

Peace Through Security Act: Congress requires all residents in US to obtain ID cards b/c necessary and proper for Congress to do so

violates 10th amendment

Congress can only use “necessary and proper” to carry out valid Congressional goals

Congress can only carry use necessary and proper clause to carry out enumerated powers

McCulloch

State Autonomy Limits on Treaty Implementation

Constitutional Basis

Supremacy Clause: treaties are supreme law of land

Structure: 2/3 of Senate ratifies treaties

Issues:

Does Congress have power to implement treaties without any other source of power?

Is implementation of treaties limited to the enumerated sources of regulatory authority granted to Congress under the Constitution?

Missouri v. Holland

Statute: 1918 Migratory Bird Treaty Act, based on 1916 treaty b/t US and GB to protect birds migrating b/t US and Canada, created closed seasons. Each country’s legislature was to make laws to carry out treaty, so US prohibited killing/capturing/selling birds.

Issue:

Does this Act infringe on rights reserved to the states?

Holding: Statute valid

Because treaties are supreme laws, unless the treaty is invalid any acts implementing the treaty are valid as necessary and proper measures

treaties invalid if they infringe on Constitution

can’t diminish state powers

here strong national interest in diplomacy outweighs state’s minor interest in this area

no prohibitions in Const.

LIMITING SCOPE OF STATE POWER OVER ISC

When are states acting too much to interfere with national matters that are relegated to Congress?

if it’s a federal statute it’s NOT DCC

Dormant Commerce Clause

Issue:

If Congress has not acted to regulate a certain matter of state/interstate commerce, has the state by virtue of its action interfere with interstate commerce?

if Congress has not acted, the Constitution reserves that regulation to federal control

Analysis:

2 lines (always analyze under both)

Actual discrimination:

Does the state action discriminate against interstate/out of state commerce?

facially

state statute specifically says it will treat state one way and out-of-state differently

purpose

means

preventing business from leaving state

imposing extra fees on out-of-state business

giving local businesses grants to compete

effect

effect places burden on interstate commerce

If yes, strict scrutiny

legitimate state objective?

least discriminatory means?

(burden of proof on the state)

Favors challenger

Undue Burden test

if the action does not discriminate, does it pose an undue burden on interstate commerce?

balance burden on interstate commerce vs. legitimate local benefit

does the burden clearly exceed the benefit?

safety “exceptions”?

presumption of validity

Qualify for Market Participant Exception?

If law would be struck down under actual discrimination or undue burden, is it nevertheless upheld because that state is acting like a private business?

state owns and operates business

look for state ownership of what’s being sold/controlled

make sure state isn’t placing conditions on purchase or sale of goods that go beyond immediate transaction

Theory: state not being protectionist b/c state is using tax dollars to assist taxpayers

Actual Discrimination Cases:

Philadelphia v. New Jersey

Statute: bars out-of-state trash from being placed in NJ landfills

Issue: does this statute discriminate against out-of-state waste?

Defense: NJ claims statute is part of police powers

regulating health

Holding: Statute unconstitutional

this law is discriminatory by face and by means

easy to see here, it obviously treats out of state trash differently than in-state

court distinguished “quarantine” cases

movement of the waste doesn’t create health risks

NJ would’ve had to show there was something uniquely noxious about out-of-state waste

even if there’s a legit purpose (health) this must also be the least discriminatory means of achieving that ends

Maine v. Taylor

Statute: banned all out-of-state bait fish because they carried a certain parasite that could infect Maine fish

Holding: Statute upheld

The statute DID facially discriminate

But under strict scrutiny it is upheld b/c Maine showed:

out-of-state fish are particularly noxious/dangerous

the absolute ban is the least discriminatory means of protecting in-state fish

effect of barring other label meant no Washington apples could be sold, would increase Washington apples’ cost of doing business substantially, and takes away major competition in NC (looks protectionist)

Strict Scrutiny

legitimate state objective?

consumer protection, health

least discriminatory means?

no, because it bars most apples from coming in b/c most are Washington, and the law is written to prefer no label to the Washington label

but private employers are restricted in how they contract, and freedom of contract is a privilege

substantial reason for discrimination?

remanded, on remand NJ tried to show that out-of-staters are cause of evil b/c people tend to spend money where the live, so they’re working in Camden but spending money elsewhere

not easy to prove

close fit between means used to combat the problem and the problem itself?

Hypo:

Statute: state allows lower tuition for in-state resident

Analysis:

is a fundamental privilege being affected?

education not yet recognized as fundamental

can argue that it affects interstate harmony

can argue it’s harder to get a job, which (like Camden) can be a privilege, and say it directly affects interstate harmony

substantial reason for difference in tuition?

in-state residents have paid taxes to the public universities

states would lose benefits if it can’t provide preference for its own citizens

need to retain people in the state and educate them and try to make them stay in-state

SEPERATION OF POWERS

Political Question Doctrine

it’s not the role of the judiciary to decide political questions, it’s the role of the executive or legislature

always be prepared to answer “why wasn’t this a political question?”

Basic Situation:

parties before the court have live case/controversy, standing, and have met all prerequisites for trying case in federal court, but the Court still may not hear the case if it regards a political question

Roots: Marbury v. Madison

question raised about whether court could resolve case regarding appointment of political officials

Justice Marshall: category of political cases to which no law applies and the matter is solely delegated to political branches

Analysis:

Is it a political question?

matter is textually committed to another branch

lack of standard, no law to apply (policy instead of law)

policy question to be decided by political branches

disrespecting another branch

need to stand firm

cause embarrassment to the gov’t b/c branches are conflicting

if any of the factors is answered affirmatively, then it’s a political question

Cases

Baker v. Carr

Facts:

Baker, a TN citizen, complained the legislative districts in TN were not redrawn in accordance with the TN Constitution and therefore he was deprived of equal protection because his vote was debased

Complaint: political process itself fundamentally flawed

Analysis:

none of the 6 factors are met

this is a matter between judiciary and state action

this isn’t a Guaranty Clause case to be resolved by Congress

Holding: Not a political question so Court can intervene

Nixon v. U.S.

Facts: Nixon accepted bribe and was criminally convicted, he did not resign from his post so he collected salary while in jail, and was subsequently impeached by Senate. A Senate committee held a hearing, collected evidence, and shared it with the whole House. House impeached, Senate convicted.

if concurrent power, look at tradition and history to see how other Presidents have acted

fact-specific, no presumptions

President acts in direct contradiction to Congress

President least authority

only has power directly granted under Constitution

presumption to strike down action

Here: #3 applies:

Congress specifically rejected this action because they rejected the amendment to the Taft-Hartley Act

President can’t have power to seize domestic property, too dangerous

narrow reading of executive power

Justice Burton:

Congress specifically retained right to grant power to seize, and didn’t grant that power in this situation

President’s actions not ok b/c Congress didn’t grant it

Justice Clark:

emergency not sufficient to invoke emergency powers

there can be times where the emergency does allow invocation of emergency powers

Absent Congressional procedure can’t happen here

Dissent:

Inherent emergency power allows President to act

Statutory history shows President does have statutory authority

Totality of the circumstances

Congress was silent even though he asked them

other presidents have done this

so he can do it too

Appointment Power

President has power to make political appointments

appointees are officers of the US who exercise significant authority pursuant to US laws

principal vs. inferior officer never precisely distinguished

II Sec. 2 Cl. 2

president has sole power to appoint principal officers, subject to Senate approval

Congress can vest power to appoint inferior officers in anyone

Morrison v. Olson

Statute: Ethics In Gov’t Act of 1978, creates mechanism for AG to seek appointment of independent counsel (IC) through a division of DC Cir. if AG finds “reasonable grounds to believe that further investigation and prosecution” of high level Exec. officer is warranted. IC investigates and prosecutes, to the full extent that DOJ and 2AG can. IC only removable by AG for good cause. Morrison appointed as IC to investigate Olson, asst. AG, Olson challenged validity of IC.

Issue: can someone besides the president appoint the IC?

Analysis:

President only has exclusive const. power to appoint principalofficers

IC not a principal position, it’s an inferior officer

IC can be removed by AG, evidence that he is inferior

IC can only perform limited duties

investigation and prosecution up to the point that DOJ can

IC limited jurisdiction

only applies to certain officials suspected of certain crimes

IC office limited in tenure

ends when good cause ends or after investigation is over

not dangerous b/c Congress naturally limited

can’t vest appointment power if it would conflict w/ functions normally performed by one branch

past history shows allowance for certain courts

This is a functionalist decision:

act as a whole doesn’t unduly interfere with role of executive

intrusion doesn’t substantially interfere with president’s ability to do his job as President

Dissent (Scalia):

Morrison’s appointment only Const. if

IC is an inferior officer

doesn’t think IC is inferior here

removal of IC doesn’t prove it’s an inferior position

doesn’t think all the reasons given are legitimate or limited as majority makes it seem

evidence of subordination not enough to prove inferiority

Congress may vest her appointment in court of law

Congress can’t appoint exec. officers

Removal Power

Constitution

executive officers can be removed by impeachment

implications that impeachment isn’t the sole method of removal of exec. officers other than VP and Pres (who can only be removed by impeachment)

Congress can limit President’s removal of exec. officers

Humphrey’s Executor

History:

Myers:

president can remove purely executive subordinates

Morrison

President’s removal powers of a subordinate can be limited as long as limits don’t impede on president’s power to faithfully execute laws

Morrison v. Olson

Issue:

Does Congress’s restriction on AG to remove IC only for good cause impermissibly interfere w/ Pres’s const. appointed functions?

Analysis:

Here, AG has sole power to remove IC, no room for Congressional involvement, but judicial review is available

Test: don’t ask whether IC is a purely exec. position, as whether Congress interfered w/ President’s exercise of exec. power and his duty to faithfully execute the laws

AG’s power to remove only for good cause doesn’t impeded on presidential authority

President’s need to control IC’s discretion isn’t fundamental to the functioning of the exec. branch as to require as MOL that IC be terminable at will

faithful execution of laws can still be ensured b/c an exec. official (AG) can remove IC for good cause

In general look for words that introduce balancing test and look for degree of interference w/ core exec. functions

Presidential power to remove inferior officers who exercised purely exec. powers and whose appointment Congress had removed from usual presidential removal procedure could be restricted if appointment was made by another member of the exec. branch

Original intent

framers could’ve foreseen this and didn’t include an IC in the Const. so it’s not allowed

General separation of powers

Morrison v. Olson

Issue:

does IC as a whole violate separation of powers by unduly interfering w/ role of Exec. Branch through Congressional overreaching?

Analysis:

Is Congress aggrandizing?

no, not trying to increase its own powers at expense of Executive’s

not usurping exec. functions

not disrupting balance b/t branches by preventing exec. from performing its functions

majority basically finds yes, but not so much that it’s offensive (balancing test)

Dissent:

Thinks proper analysis asks:

is conduct of criminal prosecution the exercise of purely executive power?

even majority finds that investigation and prosecution is purely exec.

does statute deprive president of exclusive control over exercise of that power?

yes

Scalia says any affirmative answer to this invalidates the statute

Judicial Branch

Mistretta v. U.S.

Statute: Sentencing Reform Act of 1984, creates Sentencing Comission to make sentencing guidelines. Guidelines are binding on courts, authorize limited appellate review. Commission is independent but within the judicial branch. 7 members appointed by Pres. w/ Senate advice and consent, and are subject to removal by Pres. for neglect of duty and other good cause.

Issue 1: Does commission violate nondelegation doctrine?

Majority:

Congress can use assistance from coordinate branches as long as Congress lays out intelligible principle guiding the party given the power

Here the delegation was sufficiently specific

Congress gave 3 goals, 4 purposes, a lot of guidelines

Issue 2: Does Act violate separation of powers?

Majority (functionalist approach):

there can be some overlap amongst branches

checks and balances more important than separation of powers

Test for exec branch: look to see the extent to which a provision of the law prevents the executive from accomplishing its constitutionally assigned functions

look for degree of infringement

Test for judicial branch:

don’t assign judiciary tasks more properly accomplished by other branches

here Commission is an independent body that happens to be located in Judiciary

This is a legislative Act, so Congress can’t avoid legislative procedures proscribed in Const.

the effect of the Act is legislative

alters individual’s fundamental rights

this Act doesn’t fall into one of the 4 exceptions in Constitution permitting a house to act alone

a two-house veto would likewise be unconstitutional if it didn’t allow president to review for approval

Dissent: (functionalist approach)

all 3 branches are still involved, just in a different order

Clinton v. City of New York

Statute: Line Item Veto Act gives President the right to cancel out individual provisions of certain statutes after act is passed and after following procedures. This power give to President by Congress. President ID’s items to cancel and notifies Congress, and notification is effective unless Congress disapproves, in which case bill is returned to President to be fully passed/rejected.

Issue: violation of separation of powers?

Holding: Yes, line item veto invalid

Majority: (formalist approach)

past practice doesn’t make this practice okay

in the past President has discretionary spending

silence in the Constitution means the framers didn’t intend to include this type of measure

Dissent: (functionalist approach)

President using his discretion just as he’s always been allowed to

Silence in the Constitution is ok b/c past actions show as long as president isn’t violating express terms of Const. no violation

Executive Action in Foreign Affairs

Constitutional Basis:

Congress

I

power to declare war

deal with pirates

raise money to support armies and navies

regulate commerce of foreign nations

power to raise money through duties to provide defense for US

power to call up militia

provide/maintain navy, make rules for navy

President

II

commander in chief of armed forces

“reception power” to receive ambassadors and other public ministers

vesting clause: exec. power is vested in president so if there’s an implied foreign affairs power then Pres. has it

power to make treaties

“take care” clause to faithfully execute laws

Shared powers

ratification of treaties

advice and consent for appointment of ambassadors

US v. Curtiss-Wright Export Corp.

Issue: did joint-resolution by Congress give president too much power, aka did Congress delegate too much legislative power to President when they authorized ban of sales of arms to countries engaged in conflict?

Holding: No, power naturally exists in fed. gov’t, it’s ok.

Majority: (functionalist)

History

before Const. was ratified states never had power to regulate foreign affairs

states have never at any point had power over foreign affairs

Text

absence in text irrelevant

this power would never belong to the states, it naturally belongs to federal gov’t so it doesn’t have to be expressly listed in Const.

Structure

since powers naturally belong to fed. gov’t, even more naturally belong to pres.

Pres has power over foreign affairs

Knows more about conflicts w/ other countries

Pres only official in position to negotiate w/ other countries

Theory:

gov’t has sovereignty regardless of the Const.

but unclear how to defend that certain things were nevertheless written down

ex: fed. gov’t naturally has power to declare war, but in US const. that power was even more specifically given to President

no specific support in Const. for these claims, just inferences

Impact: still good law

Dames and Moore v. Regan

Issue: Does President have power to freeze and vacate all claims pending against the Iranian gov’t in US courts at the time to instead be heard by a special tribunal?

Majority:

Functionalist approach

Congress hasn’t expressly disapproved of these actions

history supports these actions

falls into Category II under Youngstown

Hamdi v. Rumsfeld

no blank check

cite if arguing to restrict presidential power or for restrictive view of presidential powers

Hamdan v. Rumsfeld

Issue: whether military tribunal is appropriate to try Hamdan

Majority:

these tribunals are not authorized

will not expand authority to include what President did here, this falls into Category 3 of Youngstown